PadmanabhanNair, Member (J).
1. Petitioner, who was enrolled in the Territorial Army, was discharged from service stating that he is unlikely to become an efficient soldier under Rule 14(b)(iii) of the Territorial Army Rules framed under the Territorial Army Act. This proceedings was filed as a Writ Petition before the Honourable High Court of Kerala, challenging that order and the same is transferred to this Tribunal, consequent to its formation.
2. The petitioner was enrolled in the 122 Infantry Battalion (TA) Madras on 15th July, 2002, which was preceded by a physical test conducted on 6.6.2002 and a medical test conducted on 17.6.2002. He reported for training on 15.7.2002 and on 22.7.2002 the petitioner was admitted in the military hospital, Kannur. An X-ray was taken on his right leg. It is revealed that there is a fracture of the right tibia. On 24.7.2002 he was shifted to INS Sanjivani Hospital, Cochin. On 30.7.2002, the petitioner was discharged and advised rest for six weeks. On 10.9.2002 he was examined in Naval Base Hospital, Cochin. On 14.9.2002 he reported before the Military Hospital, Kannur and was discharged on 16.9.2002. On 17.9.2002 the petitioner reported for duty. According to the petitioner, on 23.9.2002 the Commanding Officer interviewed him and told him that he cannot be accommodated. He was assured that in the succeeding selection, he will be accommodated without conducting any test. It is also averred that his signature was obtained in a paper using force, in which it was written that the father of the petitioner was not keeping well and therefore he may be discharged on compassionate ground. He was forcibly discharged.
3. On 5.6.2003 the petitioner attended another recruitment conducted by the respondents for 122 Infantry Battalion (TA) Madras. Though on an earlier occasion he was assured that he will be recruited without any test, the petitioner was forced to undergo all physical and medical test. On 15.7.2003 he reported for training. On 26.7.2003 he was again admitted in the military hospital, Kannur. An X-ray was taken. It was revealed that the petitioner had sustained stress fracture tibia (right). He was taken to the District Hospital, Kannur wherein he was admitted and from there on 2.8.2003 he was referred to the INS Sanjivani Hospital, Cochin and on the same day he was admitted there. On 13.8.2003 after putting plaster, he was sent on medical leave for a period of 4 weeks. On 10.9.2003 the petitioner reported again before the INS Sanjivani Hospital. He was discharged and was advised rest for three months after including him in the temporary low medical category. On 19.9.2003 a Medical Board was convened in the Military Hospital, Kannur and the petitioner was asked to join duty on 9.12.2003. On 22.9.2003 he was discharged after examination by the Medical Board. On 26.9.2003 the petitioner was interviewed as per orders of his Commanding Officer. The doctor, who examined the petitioner in the hospital, advised that he must undergo a surgery and for that purpose an amount of Rs.3,000/- was sanctioned. That amount was not paid to the petitioner and the same was appropriated by Subedar Jose after getting a signed voucher from the petitioner. One Junior Commissioned Officer Subedar Vasudevan insisted that the petitioner should resign the job. The petitioner was subjected to third degree method. He was discharged again after forcibly obtaining the resignation letter from the petitioner. On 28.8.2003, the petitioner was forcibly sent out of the unit. On 13.11.2003 the petitioner wrote a letter to the fifth respondent narrating all the incidents. A reminder was also sent to the fifth respondent. It is also alleged that the nature of injury suffered by the petitioner was only stress fracture tibia (right) and he was included only in the category of SHAP 3 (T.12/E) and the petitioner was never invalidated permanently on the ground that the nature of injury is incurable and is totally unfit for continuing in the Territorial Army.
4. The petitioner submitted a representation to the Adjutant General on 26.11.2003 and also on 23.12.2003. On 15.4.2004 and 24.5.2004 the petitioner wrote letters to the Additional Director General, Territorial Army and thereafter a notice was issued to the Additional Director General through his lawyer. It was reported in the resignation letter which was forcibly taken from the petitioner stating the reason that his father was not keeping well and therefore he was no longer interested in continuing in service. On the second occasion also a resignation was forcibly obtained from the petitioner stating a different reason. In that it is written that the petitioner is no longer interested in continuing in service as his health is not permitting him to do the job. All these were obtained by force and invalid. Hence, this proceedings for quashing Exhibit P11 order and also for a direction to the respondents to re-induct the petitioner in service.
5. The respondents filed a counter affidavit admitting that the petitioner was recruited on 15th July, 2002 and he was admitted in the Military Hospital, Kannur on 22nd July, 2002 for fracture of the right leg. The medical examination revealed that the petitioner had stress fracture. The reason for sustaining the said injury is not known to the respondents. The petitioner was treated in the Military Hospital, Kannur on 24th July, 2002. On 24th July, 2002 he was admitted in INS, Sanjivani Hospital and was discharged on 30th July, 2002. He was granted sick leave with effect from Ist August, 2002 to 11th September, 2002. The petitioner could not even complete his training and he was discharged as per Rule 14 (b)(iii) of T.A Rules. The allegations that his resignation was forcibly obtained and he was manhandled are denied. It is contended that the very fact that the petitioner was again selected for the second time itself shows that the respondents are not biased against the petitioner. It is contended that the Territorial Army is not a career and a continued employment cannot be guaranteed. Individuals are called for training for two months in every year and also to join the Army to meet any national emergence. The allegation that the petitioner was interviewed by Commanding Officer Col.M.Ramachandran SM is not true as the then Commanding Officer was Col.M.Shrikumar Nair, SM and BAR. The petitioner was discharged on 10.10.2002 under Rule 14(b)(iii) of T.A. Rules on the ground that he was unlikely to become an efficient soldier. He was absent for 23 days during the course of mandatory training. Hence, he could not qualify for retention. The petitioner was again enrolled on 15th July, 2003. On 26.7.2003 he was admitted in the Military Hospital, Kannur on the very same complaint. On 1.8.2003 he was transferred to INHS Sanjivani. He was treated in that hospital till 13th August, 2003. On that day he was advised to avail sick leave. On 10th September, 2003 the petitioner reported in INS, Sanjivani and on 16th September, 2003 he was referred back to Military Hospital, Kannur. He was admitted in the hospital on 17th September, 2003 and on 22nd September, 2003 he was discharged from the Military Hospital, Kannur. It was contended that an amount of Rs.3,000/- was given to him for his medical check up and medicines. Only an amount of Rs.274/- was spent and the balance amount of Rs.2,726/- was deposited back into the account. The averment that he was forcibly asked to sign discharge application is denied. It is contended that on both occasions he applied for discharge voluntarily as he was unable to complete the basic training. So, he was discharged on the ground that he was unlikely to become an efficient solder. It was contended that the fact that stress fracture re-occurred even after 10 months of rest at home will show that he is not physically fit. The individual was given a fair chance to serve in the Territorial Army by enrolling him for the 2nd time reflects that there was no bias/grudge against the individual. So, they pray for dismissal of the Transferred Application.
6. The main relief sought for in the Transferred Application is for a direction to the Territorial Army to re-induct the petitioner in service in 122 Battalion of the Territorial Army, Madras, quashing Exhibit P11. The petitioner was recruited under the provisions of the Territorial Army Act and he was discharged also under Rule 14(b)(iii) on the ground that he was unlikely to become an efficient soldier also. A perusal of the records show that the provision of the Army Act has no application to the facts of this case. The petitioner was recruited under the provisions of the Army Act. He was discharged under the Rules framed under the Territorial Army Act. The provisions of the Act show that after the basic training, the persons recruited will be called for annual training for two months in a year or when called upon to meet any national emergency. So, the contention that the petitioner has been denied the opportunity of earning a livelihood is completely baseless as the Territorial Army is not a career and continued employment cannot be guaranteed as per the Territorial Army Act. The period spent under training alone will be treated as enrolled service. Even if a person continues in the Territorial Army for 10-15 years, the entire period will not be treated as service. Only those period during which he attended training or actual deployment will be considered as actual service. The provisions of the Act and Rules show that persons working in the State or Central or other autonomous bodies can also get enrolled as members of the Territorial Army and as and when he is undergoing training, his pay and allowances will be paid by the Army and during the rest of the period he will have to get his salary from his employer. As the records show that the petitioner was recruited on 15th July, 2002. On 22nd July, 2002, i.e, seven days later, he was admitted in the Military Hospital, Kannur for pain in the right lower leg. It was revealed that the petitioner sustained a stress fracture of the right tibia. He was discharged from service on 10th October, 2002. He was again selected and on 15.7.2003 he again reported for training. He was again admitted in the military hospital, Kannur after 11 days. On the second occasion also the illness was detected as stress fracture of the right tibia. So, he was again discharged under Rule 14(b)(iii) on the ground that he was unlikely to become an efficient soldier. The case of the petitioner that on two occasions resignation letters were obtained using force and was discharged is denied. If, as a matter of fact, the authorities are biased against the petitioner, there is no need to recruit him on the second occasion, though he was discharged on the first time under Rule 14(b)(iii). The allegation that the petitioner was illegally discharged using force is not established. Even the petitioner has no case that he sustained any injury while undergoing training. The reason for sustaining the stress fracture is not explained by the petitioner. According to the respondents, such a disability was developed because of the defect of his bone and not on account of any accident or incident. We do not find any reason to set aside the orders passed by the respondents discharging the petitioner from Territorial Army and order reinstatement. Of course, since the petitioner was given a second opportunity to contest and get himself recruited in the Territorial Army, it is only just and proper that if the petitioner satisfies all the conditions, he be allowed to take part in any one of the selections which is to be held in the future. We make it clear that the petitioner is not entitled to get any preference on the ground that he was initially recruited and discharged. He will have to undergo the physical as well as the medical tests and he must be within the age limit.
7. Learned counsel for the petitioner has strenuously argued before us that in case the Tribunal finds that the petitioner is not entitled to get reinstatement, a direction may be issued to the respondents to grant him disability pension. Though there is a statement in the Transferred Application that the petitioner was examined by a Medical Board, there is complete lack of pleadings and evidence on that aspect. But, of course, it is open to the petitioner to make a claim before the respondents for disability pension and if such a claim is made, it shall be considered and disposed of in accordance with law.
In the result, the Transferred Application is dismissed.
The parties are directed to suffer their costs.
Issue free copy of this order to both sides.